§ 3.58 p.m.
§ LORD LUCAS OF CHILWORTH rose to ask Her Majesty's Government whether they can report any progress in the formulation of a code of procedure for administrative inquiries as promised upon the introduction on April 1, 1958, of legislation setting up the Council on Tribunals; again in the Government statements on December 1, 1960, during the debate upon the proposal for the ironstone workings in North Oxfordshire, and again during the debate upon the Second Annual Report of the Council on July 12 last' whether the question for 181 costs for the successful objectors has been referred to the Council as was promised, and whether other related matters have received consideration; and to move for Papers.
§ The noble Lord said: My Lords, since I placed this Motion upon the Order Paper on November 1 last, two events of some moment have taken place. The first is that the Report of the Council on Tribunals upon the reference I made to them in July last in respect of the procedure adopted at the North Oxfordshire ironstone inquiry at Banbury in 1960 has been published. The second matter of moment is that the long-awaited code of procedure, which the noble and learned Viscount, the Lord Chancellor, at the time when the Tribunals and Inquiries Act, 1958, was before your Lordships' House as a Bill, promised would be produced, at long last has made its long and tortuous journey to the Council on Tribunals.
§ I know that the noble and learned Viscount, with whom since the days of the Franks Committee Report I have had many a friendly battle over this very thorny question of administrative law, will not begrudge me a modicum of satisfaction in the fact that the conclusions to which the Council on Tribunals have come as a result of their lengthy consideration of the particulars of the procedure adopted at the Banbury inquiry bear out what I have maintained from the first: that there was a prima facie case for those proceedings to be the subject of consideration by the Council on Tribunals.
The conclusions to which the Council have come are very short but they are very important, and I will read them to your Lordships. They are these:
The précis of evidence and inspector's report both indicate that the applicant's case was bad and had little chance of success. The fact, however, remains that the opponents clearly felt that they were up against a sinister endeavour to force through planning applications involving eventually the compulsory acquisition of and irreparable damage to over 4,000 acres of land in Oxfordshire. This case therefore underlines the importance of an adequate code of procedure for planning inquiries of this nature.
As indicated above, a number of important points arise out of the Council's examination of the procedure at the Banbury inquiry. First, whether in certain cases it would be better to make greater use of independent inspectors. Secondly, the extent to which special rules
should be formulated for 'called in' inquiries. Lastly, the whole question of costs in connection with planning applications and appeals. The Council intend to give further consideration to each of these questions.
§ Now, My Lords, I want to ask the noble and learned Viscount on the Woolsack certain questions. Let me say here that I feel that, in asking him the number of questions which I hope he will permit me to put, I am not at all certain that I am addressing the right person; perhaps I should address some of my questions to the noble Viscount, Lord Tenby, who is the Chairman of the Council on Tribunals and who I am delighted to see is in his place in your Lordships' House this afternoon. I will even forgive him for not replying to me, but perhaps he will do so at some time in the future, by action if not, perhaps, by word.
The first question I should like to ask the noble and learned Viscount—because this does come strictly within his province—is: In the light of what the Council has said, will he now review the whole of this vexed question of appointing independent inspectors to preside over these inquiries? The Council underline this point in the first paragraph of their Report. If your Lordships have a copy of it—and copies have been available in the Printed Paper Office for the last two or three days—you will see that at the top of page 2 they say:
The Council do, however, feel that where the Government has a specific financial interest in an application of this kind there are special arguments in favour of appointing an independent inspector, as has indeed been done in certain other cases recently.
§ I will not go over the arguments, which have been repeated ad nauseam in your Lordships' House ever since the days of the debate upon the Franks Committee Report, as to the merits of independent inspectors to sit and conduct these very important inquiries. As the Council quite rightly say, the Banbury ironstone inquiry involved the livelihoods of people on 40 farms; it involved 4,000 acres of the best agricultural land in North Oxfordshire; and it involved the expenditure by the ratepayers of Oxfordshire and some publicly-spirited individuals of £5,000 in submitting their objection to those applications. So I ask the noble Viscount, briefly, whether he will now take into consideration what the Council 183 have said, and whether, in special cases—I do not ask in all cases, but in very special cases—where it is quite paramount to have an independent and legally trained mind, he will consider what the Council have to say.
I find it strange and puzzling logic in this Report of the Council on Tribunals that, after apparently finding little cause for complaint about the procedure adopted, the Council should say this, first:
This case therefore underlines the importance of an adequate code of procedure for planning inquiries of this nature.
Their second observation is that the whole of their survey of this case raises, I think their expression is, a number of important points. It says:
… a number of important points arise",
… the extent to which special rules should he formulated for `called in' inquiries".
I do not think it is necessary for me to go into the technicalities of what is a "called-in" inquiry. Roughly, it is when the Ministry of Housing and Local Government take over the functions of the planning authority.
§ Now I ask: will this new code of procedure which is now under consideration by the Council take care of these two vital points?—because they are vital. The Council on Tribunals themselves seem not to have been able to fight their way through the dilemma of whether a statutory inquiry should be conducted upon the lines of a court of law or whether it should be conducted as an inquiry for the purpose of ascertaining the whole of the facts of the case, so that a report on these facts can be prepared and submitted to the Minister who has to make a decision. But this inquiry is not a court of law. A case is not argued and a verdict given, the inspector who sits has no authority to arrive at a decision. His great authority is that he can make a recommendation.
Paragraph B of this Report illustrates the tribunal's difficulty. Quite obviously it has not considered this case in the light of new procedure, but only in the light of old procedure. Paragraph B says this:
The question, therefore, in a 'called in' inquiry under section 15 of the Town and Country Planning Act, 1947, is simply one of
how much information the applicant is willing to supply before the inquiry and what risks he is willing to run of failing in his application for lack of supporting evidence. The Council consider that this is a complete answer to this complaint".
With great respect, I demur. If the applicant is a Government Department, or if the applicant is an applicant who makes the application under the protection of a Government Department, then he runs no risk at all, because he knows that after the inquiry has been closed he can go through the back ministerial door to the Minister, which is precisely what happened in the chalk-pit case. That was the whole of the contention of the chalk-pit case: that, after the inspector had closed the inquiry and had passed his report to the Minister, the Minister of Agriculture went behind it all and gave fresh evidence to the Minister of Housing and Local Government. So he does not run any risk.
In the next paragraph the Council quote the Lord Chancellor's point in the reply he made to me when I first raised this question in December last, and say:
The Council agree with the Lord Chancellor on this point and consider that failure by an applicant to produce any particular evidence may show the weakness of his case, but does not reveal any weakness in the inquiry procedure".
With great respect, I demur again. It shows a lamentable weakness in the inquiry procedure, because it does not matter what case the applicant puts up—in a moment I will quote the Council upon the value of the case which was put up in North Oxford—he knows very well that he can go and give fresh evidence to the Minister, as was actually done in the chalk-pit case, and was offered to be done by counsel for the applicants—
§ THE LORD CHANCELLOR
My Lords, would the noble Lord allow me to interrupt? I am almost certain that he is under a very serious misapprehension. The Minister of Agriculture was not the applicant in the chalk-pit case. The applicant in the chalk-pit case was the owner of the chalk pits, who wanted to work them; and the Minister of Agriculture was not the applicant at all. The matter in dispute was whether the Minister of Housing and Local Government ought to have consulted (a) his own experts, and (b) the experts of the Ministry of Agriculture before coming to 185 his conclusion. I do not want the impression to go out from the noble Lord, as I am sure he does not, that the Minister of Agriculture was the applicant.
§ LORD LUCAS OF CHILWORTH
My Lords, I am grateful to the noble and learned Viscount. I thought I said "a Government Department or an applicant who had the sponsorship of a Government Department".
§ THE LORD CHANCELLOR
My Lords, I do not think, on any fair construction, that it could be said that the applicant in that case had the sponsorship of the Minister of Agriculture. All that happened was that the representative of the Minister of Agriculture, if my memory is right, had said that the lime which was produced in the chalk pits would be suitable for the lime subsidy scheme. The Ministry of Agriculture were not sponsoring or supporting the application.
§ LORD LUCAS OF CHILWORTH
My Lords, I will, of course, bow to the noble and learned Viscount, but my understanding has always been that the sponsor behind the applicant in the chalk-pit case was a Government Department. But the noble and learned Viscount will agree with me, will he not, that the Government Department behind the applicant in the Banbury case was the Iron and Steel Board? Because the applicant in the Banbury case was Richard Thomas & Baldwins, a nationalised concern, and it was their counsel who volunteered to go behind the back of the inspector after the inquiry had finished and supply him with the data, the information and the figures that he quite bluntly and clearly refused, when he opened his case, to put before the inquiry.
The great issue about which I want to ask the noble and learned Viscount is, whether this new code of procedure is going to be taken care of, because in another paragraph, the Council pray in aid what the noble and learned Lord Chancellor said. This is what the Council said:The Lord Chancellor made it amply clear in reply"—that was in reply to my argument that counsel for the applicants had offered to go round to the back door—if I may 186 use that expression—and give other evidence—that the Minister would certainly not consider new evidence in private".Perhaps in another context I could say that we have now arrived at the $64,000 Question: What is new evidence? It is argued quite strongly by a large section of the law—it was argued by the noble Lord, Lord Chorley, and by the noble Lord, Lord Silkin—that the Minister could not distinguish between what was new evidence, and what the noble and learned Chancellor maintained, with equal sincerity and equal force, was nothing like new evidence: it was an evaluation of old evidence. I would ask whether that has been reconciled in this new procedure.
I would tell the noble and learned Viscount that the same thing is going on to-day. There may not have been inquiries of the importance of the Banbury case, but there have been inquiries where, after the inspector has closed the inquiry and issued his report to the Minister of Housing and Local Government, another Ministry has come in and altered the whole thing. The case I have in mind is the town map inquiry of Bicester in Oxfordshire. The inquiry was closed, the planning authority's proposals were never challenged, but when it was all over the planning authority then heard from the Ministry that, at the instigation of the Ministry of Agriculture, they had altered the plan.
I would ask whether this knotty problem of what is new evidence and of the evaluation of evidence already given has been resolved, because we shall never get any sense into this procedure until it has been resolved. The Franks Committee admitted this, though, if I may use the expression, they were a little woolly on the subject. The noble Viscount, Lord Tenby, and his Council have to resolve it somehow. It may be difficult, but it is not for the Council on Tribunals, which has been popularly called "the watch-dog of the common citizen", to burke the difficulties.
I would ask the noble and learned Viscount: is this code of procedure going to be published? I do not blame either the noble and learned Viscount or his Department for the delay that has occurred. I remember, when we discussed the Report of the Council on 187 Tribunals, the noble and learned Viscount admitted the delay and suggested that we should turn the delay into good. I can tell the noble and learned Viscount that there has to be an awful lot of good, because there has been an awful lot of delay. Now the matter is with the Council on Tribunals. I understand that the opinions of every possible body that can have any possible view upon this code of procedure have been taken—all except one, and that is, Parliament's. Is it the Government's intention, as I have pressed all along, to publish this code of procedure, which is going to be a charter defending the rights of the common citizen, so that Parliament can debate it and suggest alterations? Surely Parliament is not going to be the only body interested that is going to be ignored. Surely this vital code is not going to be produced before Parliament as a statutory instrument which is subject only to a Negative Resolution, to be passed or rejected but never amended.
There is a precedent, although perhaps the noble and learned Viscount may not think it a very good one. I say this with respect. It happened before the noble and learned Viscount arrived in your Lordships' House. I remember that this self-same argument came up when the Transport Bill was before your Lordships' House in 1953. On March 26 of that year, we had a long argument about whether certain proposals which the Government intended to make for the reorganisation of the railways by statutory instrument should be presented in a White Paper, so that your Lordships' House and the House of Commons could have an opportunity of debating them before the matter was a fait accompli. On that occasion, the noble Earl, Lord Swinton—Viscount Swinton, as he then was—was the Government spokesman. He said [OFFICIAL REPORT, Vol. 181, col. 314];After full consideration, the Government think it would be right to adopt the suggestion which was made by the noble and learned Earl, the Leader of the Opposition"—the late Lord Jowitt—that the Minister should produce a White Paper, which would contain all the details of the scheme, and that the draft Order should not be tabled at that stage. There would then be a debate in both Houses on the White Paper. The Minister, having considered all that was said in the debates on the White 188 Paper, would table his draft Order and ask both Houses to give the necessary Affirmative Resolution.I am going to ask the noble and learned Viscount whether he will adopt a somewhat similar procedure with this code of procedure for the conduct of statutory inquiries. I also want to ask whether the Council on Tribunals will frankly and fearlessly publish their views about them. I would ask the Council to remember that they are not an annexe of a Government Department; they are a body charged with seeing that the procedures of these tribunals make sense of the overriding principles of openness, fairness and impartiality laid down by the Franks Committee and accepted by the Government.
I want to deal with one other point—namely, the question of costs. I am sorry that in their Banbury Report the Council have not made a rather stronger statement. They say in their conclusion:The précis of evidence and the inspector's report both indicate that the applicants' case was bad and had little chance of success.I suppose it would not be an exaggeration to interpret that as meaning that it was a rotten case and really should not have been brought. Costs were asked for; the inspector made no recommendation; the Minister made no award; and the ratepayers of Oxfordshire had to foot the bill of £5,000. Is that right?
I know it is a difficult problem, but I say, with great respect to the members of the Council on Tribunals, that they are there to deal with difficult problems. They have had twelve months to consider it. The noble and learned Viscount the Lord Chancellor gave fair warning to his noble friend Lord Tenby, in the debate upon the Report of the Council on Tribunals, that he was going to ask them to consider this subject, although I remember that he put in the proviso, "when they had time". If they take as long about everything as they have taken about this Report they will not have very much time left. And all the time justice is being withheld from the citizen.
My final point, on the Council itself, is this. I must confess that at the time of the chalk-pit case the Council on Tribunals did for once play the part 189 of a watchdog; they made a vicious bark. But since then they have made none at all. I have the uneasy feeling that we may suffer from having a watchdog which has no stomach for its task. That, I think, would be the greatest tragedy of all. But you can understand the feeling there is of support for the Question with which the noble Lord, Lord Silkin, will follow me. There is a feeling that by constitution, personnel make-up or inclination, the Council on Tribunals cannot exercise that external vigilance that the protection of the interests of the common citizens demands; neither have they the militancy that must characterise any department that looks after the interests of the citizen against this great tide of bureaucracy.
I sincerely hope that Parliament will be able to take a hand and will have the opportunity of taking into consideration any comments which the Council on Tribunals will publicly make: because they must not be afraid of publicity. They did a tremendous amount of good for one glorious hour at the time of the chalk-pit case, and there will be many opportunities to have other glorious hours.
I know that I feel strongly on this matter, but I know, also, that the noble and learned Viscount the Lord Chancellor feels precisely the same. I am certain that he is as apprehensive as I am that we shall have to alter in some way the procedure of the Council. I think we shall have to enlarge it; it is not large enough. I do not think you can ask such a small body of very busy men to give the necessary time to the thorough consideration of all the things they have to do if the rights of the citizen are going to have proper attention. I beg to move for Papers.
§ 4.34 p.m.
§ LORD SILKIN had given notice of his intention to ask Her Majesty's Government whether their attention has been drawn to a Report (known as the Whyatt Report) published recently by the British section of the International Commission of Jurists on Ombudsmanship for Britain; and whether they will give early and serious consideration to the many complaints again officialdom which the Whyatt Report deals with. The noble 190 Lord said: My Lords, the House will be grateful to the noble Lord, Lord Lucas of Chilworth, for having brought up this question this afternoon. He has constituted himself as the unofficial watchdog not only over the administration of this country, but even over the Council on Tribunals as well. This is a subject which is not everybody's "cup of tea", and we are indeed grateful that there is somebody who is prepared to watch over all these matters and come to us from time to time and initiate discussions.
§ I am grateful to the noble Lord, also, because he has thereby enabled me to attach my own Unstarred Question to his Motion and so get a better debate for it than would otherwise have been the case. The noble Lord's Motion is in the form of a series of questions, to which he has given the answers. Having asked what is the present position about the rules of procedure, and so on, he has told us what the present position is; and we now know that the Council on Tribunals are considering it and presumably in due course will comment on it.
§ I should like to make three comments on what the noble Lord has said. First, I would associate myself with his request that eventually the new codes of procedure should come before Parliament in some form or other and be discussed before they become operative. I should have thought that that is only right and, indeed, inevitable. These codes of procedure are useless unless they are known to the public and obviously they ought to be discussed.
§ The noble Lord referred to the inspectorate, and he thought that in exceptional cases (I do not know what he meant by "exceptional"; and if he meant the kind of case that he had in mind, I should not agree with him) there ought to be an independent inspector. I suppose I have had as much to do with inquiries, both official and professional, as anybody in this House, and I am bound to say that over the whole of my experience I cannot remember any occasion when there has been complaint about the conduct of an inspector or the way in which one has carried out his duties, or that one has been in any way prejudiced or biased. Indeed, I think that inspectors are a model in the carrying out of these inquiries.191
§ I would say that, so far as it is possible, they are independent by the nature of their appointment. The Lord Chancellor is represented at their appointment, and has a say. While they are usually officially on the staff of the Ministry of Housing and Local Government, I can say without fear of contradiction that there is no question of any direction or interference by the Ministry with the way in which inspectors conduct their business. They fix the dates and so on, but otherwise they do not interfere in any way. I should not like it to go out from this House that there is any occasion when the normal inspectorate cannot do their job effectively.
§ LORD LUCAS OF CHILWORTH
My Lords, the noble Lord will forgive me for interrupting. I hope I have not conveyed to him that I make the slightest complaint about the inspectors. The inspectors have to carry out the procedure which is laid down. I am full of complaint about the procedure, but not about the inspectors.
§ LORD SILKIN
My Lords, I was not commenting on that. I was commenting on the suggestion that there ought to be independent inspectors, and pointing out that, in my view, there is little case for so-called independent inspectors. The real question—and this is what the noble Lord is getting at—is this: who makes the decision? It does not matter in the least who conducts the inquiry, so long as it is fairly conducted; the important thing is who makes the decision, and how it is made.
The odd thing is that the noble Lord is complaining about the conduct of an inquiry where he got a favourable decision. I was at one time critical of an inquiry, where again I had no complaint about the way in which it was conducted but where I thought the decision was irregular. I thought in the chalk-pit case, of which we have heard a good deal, that the Minister was wrong in afterwards hearing evidence or obtaining information—call it what you will; I do not want to he technical about it—without giving the parties concerned an opportunity of commenting or cross-examining on that evidence or information.
§ LORD SALTER
My Lords, the noble Lord asked what is the kind of exceptional cases in which it would be 192 desirable not to have an inspector drawn from the Government Service, either an actual official or one who has recently been an official. Might I suggest that where there is great intrinsic importance in the case and great public interest, and where an important part of the past history has been an involvement of a Government Department in the action proposed, there is a prima facie case for the appointment of somebody who is not as closely connected with the Government service as is an inspector appointed from the Civil Service. Might I, for example, refer the noble Lord to the case of the Oxford roads and the comments made during the course of the debate earlier this year as illustrating what I think is sometimes a strong prima facie case for the appointment of a different kind of chairman of the inquiry?
§ LORD SILKIN
My Lords, I must confess that I frankly do not understand that. If the inquiry is properly conducted by a person of independent mind—not independent in the sense that he is not paid by the local authority or the Government, but a person who applies himself objectively to the facts that are brought out at the inquiry and who makes an honest recommendation—it seems to me to matter very little whether you bring in a person from outside to conduct such an inquiry, who may not have the experience of conducting inquiries, or whether you have an inspector from your own Department. Surely, the important thing is: who makes the decision? If by an "independent inquiry" the noble Lord means that the decision is to be made by such a person, then, of course, he is going a very long way and depriving Ministers of the responsibility of settling matters with which they are directly concerned.
§ LORD SALTER
My Lords, may I explain that I did not mean that? I meant what would be appropriate in such a case as the Oxford roads. If the noble Lord will refresh his memory of the debate which took place on that question, and in particular, perhaps, of the contribution made by the noble Viscount, Lord Samuel, I think he will see what I have in mind: that in that case, having regard to the past history of it, it would have been appropriate that there should be somebody from outside 193 and of a different kind to hold the inquiry.
§ LORD SILKIN
My Lords, my memory is not as fresh about this inquiry as the noble Lord's, but my impression was that the inspector was not the normal inspector, but somebody who was brought in from outside, and that one of the complaints about him was that he was not familiar with the whole business. If my recollection is right, it might have been better to have the normal inspector carrying out the inquiry. But whatever it is, surely if the Minister responsible has to give the decision, all we are concerned about is that the inquiry is properly conducted. I would concede that there might be public reasons for the noble Lord's contention—for instance, where the actual conduct of a Minister or his Department is being impugned, or where there are accusations of bad faith, as was so in the Crichel Down case. I can well see that there it would not sound right to the general public that the inspector should be an official of the Minister's own Department, although even in that case I should say that I would trust the inspector. But you have not only got to do justice, you have got to appear to do justice, and in a case of that kind it might well be that it would be better to have an outside inspector.
The other point in which the noble Lord was interested was the question of costs. As he said, that is, of course, a very difficult question. But I hope nothing will be done to deter members of the public from pursuing their rights as they understand them; they should not be deterred by the fear of having to pay heavy costs. Indeed, it seems to me that if we are going to conduct our inquiries in that way and costs are to follow the event, we are going to tend to make them more and more formal and depart more and more from the general idea of these inquiries, which is to introduce into them a good deal of informality and make it easy for people to conduct their own case if they so desire. But I would not rule out the possibility that, in an exceptional case, costs might be awarded, and in fact that is now possible under existing legislation, and I have known cases where costs have been awarded.
194 Now I wish to say a word about my own Question. We have been discussing cases where there is a tribunal which can deal with complaints of subjects, or disputes between subjects and authority or between the various subjects themselves. But there is, over a large part of the field of public administration, no formal procedure for objecting or deciding upon objections on the part of an aggrieved party. Of course, anybody who has a grievance can complain to his Member of Parliament. If he is fortunate enough, he may get a letter into the Press, or he may have some other means of publicising his grievance. But there is over a very wide field indeed no formal procedure for getting these grievances considered.
The Franks Committee were set up, and rather curiously, this particular question was not included in their terms of reference. It was curious because, in fact, the Franks Committee were set up following the disclosures of bias and unfairness on the part of officials which were disclosed in the Crichel Down case and which, at that time, made that case a by-word. But the Crichel Down case was one of those cases where there was no remedy to the aggrieved party, and it was only by the pressure which aggrieved persons were able to exercise, as people of some influence and wealth, that they were able to secure an ad hoc inquiry. That ad hoc inquiry resulted in the disclosures that there had been bias, bad administration and unfairness on the part of the officials of the Ministry of Agriculture, Fisheries and Food.
One result of that was that the Franks Committee were set up. Nevertheless, under their terms of reference they were deliberately excluded from making any recommendations on the question of getting a remedy for this sort of thing. It was to investigate this wide gap, where no formal remedy to the individual is available, that a committee of private persons decided to conduct an inquiry. This Committee, which is known as Justice, is the United Kingdom section of the International Commission of Jurists. Early in 1960, with the help of private funds generously made available to them by a Mr. and Mrs. Neville Blond and the Isaac Wolson Foundation, 195 they secured the services of Sir John Whyatt, Q.C., former Attorney General of Kenya and former Chief Justice of Singapore, as Chairman of the Committee, which constituted a number of distinguished British lawyers, including, at one time, Lord Shawcross. This Committee, the Whyatt Committee, has recently reported and copies of the Report are available for 10s. 6d. net., this being a private Report and therefore not published by the Stationery Office, and I have had to buy a copy out of my own pocket.
In November, 1959, a Question was put to the Prime Minister in another place on this matter which we are now discussing, on the remedies open to the private citizen where no inquiry was possible, and the Prime Minister replied that the Government proposed to await the result of the inquiry to be held by Justice. This was a very generous recognition of the existence of this Committee. Justice has now reported, and my Question is directed to asking the Government, now that this Report is to hand, what they propose doing about it.
Before dealing with the Report let me quote the terms of reference, which I think will be seen to cover the point I have just made about the existing means for investigating complaints. They were, to inquire into the adequacy of the existing means for investigating complaints against administrative acts or decisions of Government Departments and other public bodies, where there is no tribunal or other statutory procedure available for dealing with complaints, and to consider possible improvements to such means with particular reference to the Scandinavian institution known as the Ombudsman. The Committee soon found that there were two distinct categories of complaints—namely, complaints against the way in which the authority, Government Departments, local authorities and so on, had made their decisions; and, secondly, complaints against maladministration such as bias, unfairness or improper conduct.
They dealt with the two different categories of cases in different ways. They recommended on the first category—that is, on the wrong exercise of discretion or a purely discretionary decision 196 —that persons who are aggrieved should have right of appeal to an independent authority unless there are overruling considerations which make it necessary in the public interest for the final decision to be left to the Executive. I imagine that the exemption may relate to some decisions of the Service Departments where secrecy is essential, or to similar considerations of that kind.
The general principle of the right of appeal against discretionary decisions has already been accepted and is being widely applied, and in those areas of discretion where the tribunal or inquiry system already applies the Council on Tribunals keep the working of these tribunals under review and report annually, and no difficulty arises. But the discretionary cases which are not subject to rights of decision by an independent tribunal are those of a number of decisions made by a variety of Ministers, who are referred to in the Report itself, in the Home Office, the Ministry of Education, the Ministry of Agriculture, Fisheries and Food, the Ministry of Health, the Board of Trade, the Service Departments and the Post Office. It is curious that all discretionary decisions are not subject to appeal. A number are, but a number are excluded, and it is sometimes a little difficult to find any principle upon which some decisions can be the subject of appeal while others cannot. But the Committee tried to give a considerable number of instances of cases where there ought to be an opportunity for appeal, and I will not labour them in my remarks.
As regards these particular decisions which are not subject to appeal, the Whyatt Committee recommended that the powers of the Council on Tribunals should be extended to enable the Council to survey those areas of discretion which are not at present subject to appeal and to make proposals for bringing such areas within the tribunal system where they think it is appropriate. This will probably present difficulties, but the principle of right of appeal in discretionary cases having been already conceded over a wide field, the Council on Tribunals should not find it so difficult to decide the extent to which in particular cases it should be extended.
I come now to the conclusions of the Committee regarding the complaints of maladministration. I recognise the value 197 of the Parliamentary facilities that are available, the Questions in the House, the adjournment debates and other valuable means for bringing to notice complaints of maladministration such as I am referring to. I would also emphasise that such complaints are relatively few, thank goodness, in this country and that nobody dealing with this responsibility would be unduly burdened in having to deal with the volume of complaints that would arise. Indeed, in the Whyatt Report there is given a number of cases of this kind in those countries where they have somebody to deal with them. The number of complaints is relatively small, and would be quite small and negligible even if applied to the much greater population of this country.
The value of these things would be more effective if supplemented by machinery which would enable complaints to be investigated by an impartial authority if requested by Members of Parliament. The Whyatt Committee therefore propose that an officer, to be called the Parliamentary Commissioner—not an Ombudsman but someone with powers similar to his—with a status similar to that of Comptroller and Auditor-General, should be appointed and, subject to certain conditions, should investigate complaints of maladministration against Government Departments received from Members of Parliament. The Members of Parliament would be the channel through which complaints would be passed on and investigated. Such an officer would be similar to that of the Ombudsman who has existed in Scandinavian countries for many years, in Sweden for 150 years and in other countries which are emulating the Scandinavian countries, for instance, New Zealand, which I believe has recently passed a Bill to introduce an officer of that kind.
The recommendations of the Whyatt Committee on this question are extremely limited: first, that all complaints which would be investigated would be channelled through Members of Parliament. Secondly, they would not at present investigate complaints against local authorities. Thirdly, that there would be a right of veto on any particular inquiry by the Minister concerned if he took the view that it was improper that such an inquiry should take place, 198 but of course publicity would be given to any such veto and the Minister would have to take that into account. And, fourthly, though the Parliamentary Commissioner would have access to the files of a Department, this would be limited to ingoing and outgoing correspondence and would not apply to internal minutes, so that he would not be allowed to know what had passed between the various officers of the Department.
They recommend that the Parliamentary Commissioner should submit an annual report to Parliament on the more important cases he has investigated, and he may also issue special reports from time to time on cases of particular interest. Your Lordships will agree that the recommendations on this aspect of their terms of reference, namely, maladministration, are, as I have said, extremely limited and cautious; very much so in the opinion of many students of the Report who have commented upon them.
But it is obvious that as experience is gained—and the Committee have decided on the policy of festina lente—more and more responsibility will be given to the Parliamentary Commissioner; that in due course he might even carry out investigations into complaints of maladministration by officers of local authorities, and the channel would not necessarily be confined to Members of Parliament. But it may well be that it is wise to start this up with the limited form of investigation.
I have summarised in the briefest possible form the terms of the Whyatt Committee Report, and I should like, on a personal note, to say that I am doing so under great difficulty; I hope I shall be able to keep my voice going to the end, but it is a little difficult. I would ask the Government to agree that the principle that the individual should have a right to have his grievances against authority examined by an independent person or body should be universally recognised, unless it is clearly in the public interest not to allow such an examination, and I should imagine that those cases would be very rare indeed. I would also ask them to agree that the decision on particular cases should not rest solely on the view of the Minister concerned. I would ask the Government further to agree that there should be a 199 method for an independent inquiry into maladministration, bias or unfairness on the part of authorities, such as the Crichel Down case; that this should not be by way of an ad hoc inquiry, which was forced upon the Government in that case, but should be a normal and regular part of our Constitution.
I do not necessarily advocate the recommendations of the Whyatt Committee. I shall be interested to hear what the noble and learned Viscount has to say about them. But if he agrees to the principles that I have just laid down, I would ask, if the Government do not accept these recommendations, what alternative methods they would suggest for dealing with these grievances. I am quite sure that as the contact of the ordinary individual with authority spreads, with the growth of Ministries and their powers, and the daily contact which the individual, more and more, is going to have with authority, the need for dealing with cases of the kind I have mentioned is an increasing one. We cannot afford to leave with the subject the feeling that there are types of grievances that he might have against authority which are incapable of being dealt with in an impartial way, and he is merely left with a grievance. I have put this down in the form of a Question. It has been a very long Question, but I hope that it is a not unimportant one, and that the noble and learned Viscount will be able to give a satisfactory reply.
§ 5.7 p.m.
§ LORD AMPTHILL
My Lords, I rise to support the Motion moved by the noble Lord, Lord Lucas of Chilworth, from the Cross Benches with his customary vigour and eloquence, which I, for one, always enjoy very much. I echo Lord Silkin's remarks, that we are grateful to the noble Lord for raising this matter again to-day. I think we are all very grateful to the noble Lord, Lord Silk in, for putting down his timely Question on the Whyatt Report. Like him, I had to put my hand in my own pocket and buy my own copy. I listened to the noble Lord's remarks with great interest, and I am glad that his voice managed to survive the ordeal. I do not propose to follow the noble Lords who have spoken already in great detail, though in a general sense I shall cover many of the points raised by them, but my 200 principal object in rising to-day is to elucidate certain questions which have occurred to me in connection with inquiries arising from the Defence Ministry's activities.
Your Lordships will recollect that when I last spoke in a similar debate on July 12 last, also on a Motion by the noble Lord, Lord Lucas of Chilworth, I recounted my experience as one of the trustees for a small agricultural estate at Ringstead Bay in Dorset, where we opposed the compulsory acquisition of part of the land by the Air Ministry for the purposes of erecting a tropospheric forward scatter wireless station for the United States Air Force. In retrospect, I fear I took up a great deal too much of your Lordships' time on that occasion, and I hasten to add that to-day I do not intend to take up more than a few moments of your time. Nor do I propose to refer to the Ringstead Inquiry in any detail, and only in so far as it may be necessary to illustrate some matters which I believe are relevant to this debate.
So far as Ringstead itself is concerned the matter is finished. The work is proceeding day and night, the bulldozers have completed their vile work, tons of concrete have already been poured, and this horrible birdcage of an aerial, 120 feet high by 700 or 800 feet wide, will shortly appear and add further disfigurement to the beautiful Dorset coast. When I was down there a week or two ago I even saw a Coca-Cola service van in attendance, and I must say I was strongly tempted to let the air out of its back tyre.
No, my Lords, my purpose in rising to-day is to raise one or two general questions, the answers to which, if we can get them, would, I think, be of considerable interest and importance to the public at large and to those who may find themselves in the same unfortunate position as did the Ringstead Trustees. The first matter which I wish to raise refers to the scope of the Council on Tribunals. When I spoke in the debate on July 12 last, I told your Lordships that I was referring the question of costs in the Ringstead case to the Council on Tribunals. It was obviously improper for me to say more then because at that time our reference was in fact before the Council on Tribunals. However, early 201 in August the Council on Tribunals informed us that they did not think that the Ringstead Inquiry came within their scope, because it was not a statutory inquiry within the meaning of the Tribunals and Inquiries Act, 1958, Section 1 (1) (c). They pointed out that the Ringstead Inquiry had in fact been held in pursuance of the undertaking given in Parliament by the Secretary of State for War in another place on March 6, 1959.
In their extremely courteous reply, the Council on Tribunals said they were reluctant to come to such a conclusion without hearing any contrary view which we wished to express. My co-trustee and I accepted this invitation and gave as our view that an inquiry held under the procedure laid down on March 6, 1959, was clearly within the spirit, if not perhaps the strict letter, of the 1958 Act. We also pointed out that there had never been any official indication, so far as we knew, that the protection afforded to statutory tribunals and inquiries by the Act of 1958 was not to be extended to such tribunals and inquiries under the new Defence legislation promised in this same statement of March, 1959.
Due to the long vacation—I make no complaint about this at all—it was not until October 5 last that we received a final reply from the Council on Tribunals. This stated that after further consideration the Council were still not satisfied that the Ringstead inquiry came within their terms of reference as laid down by the appropriate section of the 1958 Act. The Council invited us, if we thought it proper to do so, to request the Lord Chancellor to refer the matter to them under Section 1 (1) (b) of the Act. Rightly or wrongly, we did think it proper to do so, and, needless to say, with his unfailing courtesy the noble and learned Viscount who sits on the Woolsack gave us a full prompt and early reply. To our great disappointment, the noble and learned Viscount took the view that it was not within his statutory powers to comply with our request. The noble and learned Viscount went further and said that he had reached the conclusion that the Ministry could not be held to have acted unreasonably in this case, and consequently he would not, even if he had the power to do so, have referred the case to the Council in the exercise of his discretion.
202 I do not propose to argue this last point, as to whether or not the Air Ministry acted unreasonably in this case. The noble and learned Viscount can hardly expect me to agree with him, but this is neither the time nor the place to discuss that aspect, nor do I think it would be right for me, to do so. Nevertheless, I think that the experiences which I have just described raise certain important questions. First, there is this question of the scope of the Council on Tribunals. It seems to me, as a layman, to be rather splitting hairs to say that because an inquiry was held under the procedure laid down in another place on March 6, 1959, for Defence inquiries, it is not a statutory inquiry within the meaning of the 1958 Act. After all, this procedure was formulated as a stop-gap pending new or consolidating legislation of the Defence Acts.
The new legislation, when enacted, may or may not put relevant inquiries or tribunals within the scope of the Council on Tribunals. If it is the intention of Her Majesty's Government to bring such inquiries within the scope of the Council of Tribunals, it seems to me unreasonable to exclude them now, because, as a temporary or stop-gap measure, they are held under a special procedure announced in Parliament. On the other hand, if it is the intention that the new legislation, when it comes along, will definitely exclude all such tribunals and inquiries from the scope of the Council on Tribunals, then I think that this is a matter which your Lordships will wish to consider when the proposed new legislation is before Parliament.
Your Lordships will be aware, as I am, that secrecy in the national interest is often of paramount importance; but this can be carried too far (as I think it was in some respects in the Ringstead case). Therefore, I hope that when the Lord Chancellor comes to reply he will be able to tell us that the new Defence legislation will contain provisions to bring inquiries and tribunals within the scope of the Council on Tribunals. In parenthesis, I should like also to ask what progress is being made with the drafting of this new Defence legislation. It really is needed to clear up the present jungle, which starts with the Defence Act, 1842, and proceeds through the Ordnance Act, 1885, to many others 203 which I will not weary your Lordships by reciting.
Turning now to the question of costs, I would remind your Lordships that the Council on Tribunals, in their Second Report issued in June, 1961, have this to say at paragraph 122:We expect the difficult question of costs will be specially referred to us before long.I take this to mean that the Council anticipate that the Government will follow the recommendations in paragraph 94 and again in paragraph 326 of the Franks Report, where, in the last named, they say:We recommend that the Council on Tribunals should be asked to consider the basis on which reasonable costs should be assessedDuring our last debate the noble and learned Viscount on the Woolsack, as I think the noble Lord, Lord Lucas of Chilworth, has already said, told the House [OFFICIAL REPORT, Vol. 233, (No. 108), col. 214]:I have had it in mind for some time—I warn my noble friend Lord Tenby—to refer this matterof coststo the Council as soon as they are free to take it up.Now that the Council on Tribunals expect such reference and the noble and learned Viscount on the Woolsack has it in mind to make such reference, I think it is a fair question to put: has such reference yet been made? If not, when is it anticipated that it will be made?
Before leaving the Council on Tribunals, I should like to refer briefly to the draft rules and procedures. During our last debate in July, the noble and learned Viscount on the Woolsack explained the delay in producing these. As I understand the position, from what the noble Lord, Lord Lucas of Chilworth, said, these rules and procedures are now ready. Frankly, I did not know that until I came into this Chamber. Only two days ago, I was telephoned to by a friend of mine who is connected with the National Federation of Property Owners, which I believe is one of the bodies consulted about these rules. He asked me to say that they were very concerned about the delay in producing these draft rules of procedure.
My Lords, I am nearly finished, but before I sit down I should like to make 204 a brief reference to the Whyatt Report. I am sure that all citizens of this country owe a great debt of gratitude to the Council and the Committee, and in particular to their Director of Research, Sir John Whyatt. In paying my humble tribute, I do not want to forget those whose benevolence made the research possible. I can only hope, as Lord Shaw-cross said in his preface:that those concerned with this matter will give it early and favourable consideration.My Lords, I think that this Whyatt Report presents a really down-to-earth and practical approach to the problem of, to quote Lord Shawcross again:… reconciling the needs of organised society with the rights, liberties and privileges of the ordinary individual.
§ 5.22 p.m.
§ LORD DENNING
My Lords, the matters which we are discussing today raise the perennial question of the protection of the individual against the State, the Government Departments and the Executive. We should remember, however, the long way we have come since a few years ago when there was the Crichel Down inquiry, which exposed a serious case of maladministration by Government Departments. The Franks Committee was set up, but it did not deal with that type of maladministration. It had quite enough to do with tribunals and inquiries, which were one section of the problem. We ought to be satisfied with the progress that has been made on that side. With regard to tribunals which decide between the individual and the State on matters of insurance, pensions, land questions and so on, that system of tribunals is part of our judicial system with appeals on points of law to the courts, of which one hears no word of complaint today. So much for tribunals.
With regard to inquiries, we ought to recognise how much has been done there too, because previously when there was an inquiry, whether it was a planning inquiry, an inquiry for the compulsory acquisition of land, or whatever it was, no one ever saw the report of the inspector. The formal decision of the Minister was just given, with no reasons, so that no one knew for what reason the Minister had come to his decision. As a result of the recommendations of the Franks Committee, which 205 have been translated by Ministerial circular into action, we have had since that time reports by inspectors made available to the parties so that they have seen them and we have had the reasoned decisions of the Minister.
§ LORD SILKIN
My Lords, could I correct the noble and learned Lord on just one point? I can say, quite definitely and positively, that it was always the practice to give reasons for decisions. The innovation was the publication of the inspector's report. But there was never a decision given without giving reasons.
§ LORD DENNING
I am much obliged to the noble Lord. I think that is quite correct. I am not sure whether all Departments did that, but in any event the important thing is that the party did not know what the inspector thought of the case and what was the report that he made to the Minister. Furthermore, if the Minister differed from the decision, the party did not know why he differed. That has all been altered by the Ministerial circular, by which the party does know what the inspector thought of it and what he reported, and if the Minister differed, the party knows why the Minister differed. The Chief Inspector of the Ministry has recently said in a public lecture that that has had a markedly beneficial effect on public relations. Previously, it was the Ministry which opposed it, but now there has been a great improvement.
It was that very system of making the inspector's reports public which disclosed weaknesses. Indeed, it was the very publication of the report of the inspector and the Minister's reasons which led to the fact that in the chalk-pit case it was discovered that the Minister, before coming to his decision, had had information from the Ministry of Agriculture. The whole question arose as to whether it was permissible for him to have that information and consider it in coming to his decision without giving the party an opportunity of commenting upon it or giving counter-evidence upon it. He certainly cannot do that when it is factual evidence; he certainly cannot do it when it is expert evidence on questions of fact; but he claims to be able to do it by saying that it is just an evaluation of technical evidence. My Lords, that is a very 206 difficult and narrow distinction to make, and I would suggest that always, if there is any doubt about whether it is factual evidence or expert evidence, the party should be given the benefit of the doubt before it is taken into account by the Minister and should have an opportunity of considering it and commenting upon it.
The rules are not out yet, but we hear that they have been submitted to the Council on Tribunals. I hope that the rules will make provision for determining that very delicate question, and will also make provision for another weakness that is disclosed—that of costs—and will bring into question other inquiries as well as statutory inquiries. That is going forward to remedy that section of public administration.
But the problem which we have not yet tackled is the Crichel Down problem; the one of maladministration by Government Departments. It is for that reason that we ought to be grateful for this Report by Sir John Whyatt and his colleagues, where they have brought to our attention what has been done in Scandinavian countries by having what they call an Ombudsman. It has been a most valuable Report, but in truth, if you study it, you will see that in those countries they have not got that fundamental doctrine which we have here: the doctrine of Ministerial responsibility, whereby a civil servant is responsible to his Minister and the Minister is responsible to Parliament. If anything goes wrong in a Ministry, which may be due to the civil servants, the Minister has to answer to Parliament for it. Indeed, although he may have been guilty of no fault himself, he may in the last resort have to resign. Our doctrine of Ministerial responsibility is cardinal to this country and the way we do things. But if you should go to Scandinavia and read the reports it is very different there.
Let me give you some illustrations which appear from this Report. A civil servant can be summoned before the Ombudsman to account for his actions. Apparently a high official in a Foreign Office was found to be a spy. Immediately, the Ombudsman called the Permanent Secretary of that Foreign Office to book, inquired whether he had taken proper steps to safeguard security, and 207 criticised the permanent official. In another case, the head of an educational institution apparently influenced matters so that his own nephew, or some other close relative, got a scholarship. The Ombudsman called the head of that educational institution before him to account for his actions. The chief inspector of police warned off a taxi-man from his stand, and was called before the Ombudsman. Then an insurance officer, who did not reply quickly enough to a request for higher insurance money, was called before the Ombudsman. In other words, the Ombudsman can call a civil servant to book, have him on the mat and investigate the matter.
My Lords, that would seem to run contrary to our doctrine of ministerial responsibility. It may be that we carry it too far, but your Lordships can recollect ways in which we have dealt with such matters here. Where it was a question in the spy case of whether the security arrangements were adequate, then a committee was appointed under Sir Charles Romer to inquire into the security arrangements at the Admiralty. Where it was a question of telephone tapping by the police, after Parliamentary Questions a committee was set up under Lord Birkett. Where it was a question of nuclear disarmament people sitting down in Trafalgar Square and of the police being a little too violent, after Questions in Parliament, it was said that there would be a Departmental Committee. The remedy in this country so far in cases of maladministration is for the matter to be raised in Parliament, or for Members to write to the Ministers, and then the Ministers have to account in that way. If necessary, a committee is appointed.
My Lords, that is the way it works in this country, but I submit that in these days it is not sufficient. It really provides a safety valve, ensuring the safety of the administrative machine and providing for the public outcry against it in serious cases. But there is nothing that we need so much as, so to speak, a thermostatic control, to keep the whole thing from getting over-heated, a regular system by which complains against maladministration can be inquired into. That is the problem which is being considered in this Report, and 208 it is suggested there should be a Parliamentary Commissioner appointed. His inquiry could be vetoed by the Minister concerned, but he would inquire into matters which were put to him by Members of Parliament but not others in the first place. I venture to think that that is not a satisfactory solution. It would not suit the way in which we do things. One of the ways in which we could deal with it would be by tightening up or improving our whole system of laws relating to administration.
I will give your Lordships just two or three instances in which the courts have felt themselves unable to redress grievances. There was the case of a Mrs. Woollett, who had three acres of land in Essex which was requisitioned. She was told it would be released within twelve months, and, as a result of this, she bought a lot of equipment for it. Then, afterwards, the Ministry said, "We have changed our mind. We are not going to release it. We are going to keep it". There was no redress in the courts at all. Then there was the case only this year where people were seeking to buy or set up a builder's yard in Southend. They had a piece of land in mind, and they wrote to the Chief Engineer of the Borough asking whether this land would be available for use as a builder's yard. The reply from the Chief Engineer was, Yes; its existing use is as a builder's yard, so you do not need special permission for it". With that assurance they bought the land and occupied it. Then, afterwards, it was said, "It is not available. The Chief Engineer was wrong", and the local authority were allowed to enforce the restrictions, even though the land had been bought as a result of the assurance that it could be used as a builder's yard. And the law could give no redress.
The other case I would mention is that which appears in our books in which local authorities, Government Departments or whoever grant licences can cancel them, and even deprive a man of his livelihood by cancelling them, and there is no redress. The well-known case is where a taxi driver had to get a licence to run his taxi, and the authority were going to cancel the taxi driver's licence because they said he had been using the taxi cab for driving prostitutes around. When he was 209 up before the committee on the question whether his licence should be cancelled or not, he said, "I want to call my own witness to prove I was not on the day in question driving for prostitutes at all but I was driving it for an ordinary fare." He was not allowed to call that witness, and his licence was cancelled. There was an application to the court to try to upset that decision, but it was held that it was not a judicial decision but an administrative one, and that the court had no power to interfere. There is a whole stream of cases of that kind where the courts have no power to interfere because the decision is one of an administrative nature.
The question is: is our existing system good enough when it consists simply of Members of Parliament—maybe the Press as well, but certainly Members of Parliament—taking up such a matter and the Minister being responsible? Having regard to the large number of individual complaints that there are, ought we not to have a regular system, impartial and independent, which can inquire into matters of this kind. It may not be the right system to have an Ombudsman or even a Parliamentary Commissioner. It might be that the Council on Tribunals and Inquiries could extend their scope somewhat. I do not think the cases would be many. The cases of corruption or maladministration in this country are, fortunately, very few. But if the Council on Tribunals and Inquiries could extend their operations so as to bring within their scope cases of maladministration, and in that way serve as the germ of a new system, which might be called a Council of State, to deal with maladministration—a system which is so needed at the present day, when Government Departments and local authorities have so much to do with the individual—I think we should be setting out on a good, new path. At all events, the information collected in this Report is well worthy of consideration and discussion, and I hope the noble and learned Viscount will give it due consideration.
§ 5.38 p.m.
§ THE LORD CHANCELLOR
My Lords, our debate this afternoon has ranged over a wide field, and I am sure 210 that the whole House is grateful, as I am, to the noble Lords who have spoken and to the noble Lords, Lord Lucas of Chilworth and Lord Silkin, to whom we are indebted for its initiation. I should like to say at once that I consider all the subjects which have been raised as subjects of great importance. I hope that your Lordships will bear with me if I spend a short time in explaining the question of the delay, which at first sight appears a long delay, in regard to the code of rules of procedure.
It is quite true that during the debate on December 1, a year ago, on the Oxfordshire Ironstone case I said that the draft rules were in an advanced stage of preparation, and that I hoped to be able to submit them to the Council on Tribunals for their comments very shortly. What happened was this: that the drafts were in fact sent to the Council early in January of this year. That was quite soon after this debate. But the Council thought—and I am sure your Lordships will agree with the Council—that before they came to consider the rules in detail, it would be useful for them to know the views of the various professional bodies concerned, such as the Bar Council, the Law Society, the Royal Institution of Chartered Surveyors, and similar bodies.
I must admit that there was some delay in placing the matter before these bodies and in sending the drafts to them. That was partly due to the fact that in the early months of this year the case which has been referred to as the chalk-pit case arose. Your Lordships will not think it unexpected that those of us who were concerned with the rules were also much occupied during that time with the chalk-pit case and its various ramifications. However, by May the draft rules were sent to these various bodies, comments were invited in that month and a large number of observations, more than 150 in all, were received between May and August. As your Lordships can imagine, the draft rules were revised after a very careful consideration of these observations, and that is why they were not sent back to the Council on Tribunals until last month. I ought to say, in fairness to the Council and to my noble friend Lord Tenby, that I understand they have already had a preliminary examination of the rules at their November meeting, 211 and they are going to examine them again on December 20.
As I said in the last debate, and as the noble Lord, Lord Lucas of Chilworth, was good enough to remind us again today, the delay in producing the rules has in some ways been an advantage, for it has at least given us a full opportunity of considering the difficult question of new factual evidence. Because, as I said to your Lordships, I do not think anyone realised that there could be such bitterly held differences of opinion until we had to consider the chalk-pit case.
Your Lordships remember that the point at issue is the extent to which a Minister, who receives a report from one of his inspectors, should be at liberty to differ from the inspector without reopening the inquiry or giving the parties who appeared at the inquiry an opportunity of comment. My Lords, I think some of the difficulties have, in the process of our discussion, been fathered on me, but I have the Franks Report in front of me, and I hope your Lordships will allow me to remind you that they said:We recommend that the Minister should be under a statutory obligation to submit to the parties concerned, for their observations, any factual evidence, whether from his own or another Department or from an outside source, which he obtains after the enquiry. In the definition of factual evidence for the purposes of this recommendation we include expert opinion on matters of fact but not expert assistance in the evaluation of technical evidence given at the enquiry".My Lords, that is the origin of one of our difficulties, and the noble Lord, Lord Silkin, will remember, as I do, his own speech on that point. He also found that very difficult.
There are various other aspects of the matter where all the facts are admitted and agreed; and then the question is: What is the proper inference to be drawn from these facts? We, as lawyers, would probably say that is a question of fact; but your Lordships, in your experience, know that you can have not only an honest but a reasonable difference as to inferences to be drawn from admitted facts, and this occurs in many fields of our lives. I am not going into that in detail, but I want to say that I agree with the noble Lord, Lord Lucas of Chilworth—and I think the noble Lord, Lord Denning, took the same view—that it would be very little 212 use publishing rules of procedure which did not solve that difficulty. That is the point which, I am sure, the noble Viscount, Lord Tenby, and his colleagues are considering; and, as I told your Lordships before, when they do come to views I shall be more than delighted to hear those views, and if there are any points they want to put to me, to discuss them. And I can say that the Ministry of Housing and Local Government, to say nothing of my own Department and myself, have given a great deal of thought to this matter, just as the Council have.
Now, my Lords, I may well be attacked for saying this, even saying it to your Lordships, but I feel that it is my duty to say it, and I must. We must find a solution which satisfies the needs of fairness and equity to all who are concerned. But it must not mean intolerable delays in the 6,000 inquiries which the Ministry of Housing and Local Government have to deal with every year. If we do that, we substitute another injustice. It is a difficult point, but I should not be honest if I were not to bring to your Lordships that point of view, because I am sure it is an important aspect of the matter.
Now, I do not think it would really be very useful if I were to develop all of the various arguments which have been put forward. As the noble Viscount, Lord Tenby, knows, there are a number of approaches which we have considered and which he will be considering, but I do not think it would be profitable to go through them all to-day. The noble Lord, Lord Lucas of Chilworth, and the noble Lord, Lord Silkin, ask me again about the submission to Parliament. I promise that I shall give that the most careful consideration. I should like only to say this: that if one did lay the rules, and there was a Prayer and a general opinion in this House that a rule, or rules, was or were not in accordance with fairness or equity, or, equally, on the other hand, if the House thought the delays caused were too long, I cannot imagine that any wise Minister—and I hope I may include myself, just for this purpose, in that category—would not look at them again. But may I leave it that I will consider that point very carefully, and I will let your Lordships know how my mind is working?
213 The next point which the noble Lord, Lord Lucas of Chilworth, dealt with was the question of the award of costs to successful objectors at inquiries. Here again, as the noble Lord said, the problem is not an easy one. Your Lordships will remember that the Franks Committee thought that costs should be awarded more widely than at present and that in compulsory acquisition cases and in cases relating to clearance schemes, reasonable costs should generally be awarded to successful objectors directly interested but that they should be awarded to unsuccessful objectors only if the acquiring authority has acted unreasonably. The Committee thought that, in the case of planning appeals, reasonable costs should generally be awarded to owner-appellants if they succeeded at the inquiry or if the planning authority had acted unreasonably, and that only exceptionally should costs be awarded to other successful appellants.
When we first discussed the Report of the Franks Committee, I said that I thought there were difficulties about these suggestions. I said, in particular, that it might be very unfair to give costs to successful objectors and to withhold them from those who had been unsuccessful because there might be a policy reason which defeated the second objector and allowed the first to succeed. However, the Ministry of Housing and Local Government have been very helpful and have made a further study of all the provisions in the Acts and of the practice that has been carried out back to the time of the noble Lord, Lord Silkin, to which he referred to-day.
Therefore, I propose, with the concurrence of my right honourable friend the Secretary of State for Scotland, to refer the whole question of costs to the Council without any further delay, and to ask them to give me all the guidance in their power. The award of costs to successful objectors was, of course, one of the matters which emerged in the course of the inquiry into the North Oxfordshire ironstone case, which the noble Lord, Lord Lucas of Chilworth, mentioned, and which has recently been the subject of consideration by the Council. As the noble Lord said, the Council drew attention to this point, so that the reference by Mr. 214 Maclay and myself will be at a suitable time. I hope that what has already been done will be helpful to the Council in the way of background information, as it is not slanted in any way.
§ LORD LUCAS OF CHILWORTH
My Lords, I brought this forward so strongly because the Council have said, in words, that this was an unreasonable case to have been brought, because it was so bad. May I remind the noble and learned Viscount that the Council's conclusion was:The précis of evidence and inspector's report both indicate that the applicants' case was bad and had little chance of success.I interpreted this as meaning that it was a case which ought never to have been brought and therefore fell into the category of being unreasonable, and that costs should have been awarded against the applicants.
§ THE LORD CHANCELLOR
My Lords, at any rate, the Council have now got the question of costs to consider. May I be a little lighthearted for a moment and not be misunderstood by your Lordships? With regard to that Report, undoubtedly the Council have brought out the three points, but there were also eight points of criticism of procedure which the noble Lord developed in this House. I dealt with them in answering the debate and said that in my view they did not constitute errors in procedure. On the whole, on these eight points, the Council have agreed with my view. I would only point out to the noble Lord that he must not take that as a ground of criticism of the Council.
I think I have covered all points except that raised by my noble friend Lord Ampthill. If I may say so, again he warmed all our hearts by raising a problem which I know means a great deal to him emotionally, if he will allow me to put it that way. He raised the matter with great restraint and forbearance, for which I am grateful. On the question of his own costs in that inquiry, I took the view, for reasons I set out at some length in the letter which was written on my behalf to his solicitors, that it was not possible for me to refer this on the construction of the section. I also gave my view that I did not think that the inquiry had acted unreasonably and that therefore I would not have referred 215 the matter. My noble friend has said that he does not agree with that, but this is a point on which I think he will agree that two views are possible.
My noble friend went on to raise two more questions: first, the question of costs generally—and that I have already answered. The second point was with regard to new Defence legislation. I will certainly bring this matter to the attention of my right honourable friends in the Service Departments, especially from the point of view of asking them to consider whether the special tribunals which exist for obvious security reasons in Service matters will somehow be dealt with so that their reports can be made to the Council on Tribunals, and also from the point of view of costs. As a distinguished sailor, my noble friend will understand that, when security matters come in, it is not so easy. The question of reports should be as easy as in other matters, and I should like to give this a good deal of thought. I hope that, if not content, my noble friend will believe that the matter will not be pigeonholed and that the special position of inquiries in which Service Departments are involved will be considered. I do not think that I can go further, but I want him to know that I will consider his point.
I want to say a word about the Council itself and its composition. It is now at full strength and any further increase in its size would require legislation. I still believe that one of the great merits of the Council is that it brings to its work the experience of its members in a large number of different fields, and I should be very sorry to see it turned into anything in the nature of a body of fulltime professional members.
Nor do I think that a great deal can be usefully done to assist the Council by giving it a large increase of staff, although it is a fact that there has been quite a substantial increase in the staff in the past twelve months. The difficulty of the Council—and I know the noble Lord, Lord Lucas of Chilworth, who is so fair-minded, will appreciate this point—is that its work requires that it should be carried out by the members of the Council and not by its staff, however skilled these may be. For example, the scrutiny of the rules of procedure cannot be left to the officials of the 216 Council but must be undertaken by the members themselves; and the same applies in a large degree to the visits which are paid to tribunals and statutory inquiries and to the consideration of objections which is now forming a more and more important part of the Council's work.
I believe that the Council has fully justified itself in the three years which have elapsed since it was first set up, and I have no doubt that it is working with considerable efficiency and has shown its readiness to embark on thorough-going investigations and to form judgments which are quite evidently independent of any outside influences. If we are to give the Council the extra work which is suggested in the Whyatt Report, to which the noble Lord, Lord Silkin, referred, then a new situation would arise and one would have to consider it again.
That brings me to the subject of the Whyatt Report, and here again I hope the noble Lord, Lord Silkin, will think this an adequate way of dealing with the subject. I should like to state quite briefly the problems which have presented themselves to my mind on a reading of this interesting Report. As your Lordships probably know, and as the noble Lord, Lord Silkin, has said, it deals with two matters—and I think one can be clear about it only if one has that in mind. First, it deals with complaints against discretionary decisions where the citizen disagrees with the way in which an official has exercised his discretion but has no formal means of challenging it. My noble and learned friend Lord Denning referred to the question of a licence which is given to certain people, and I think that is a very good example. The complaint here is not that the official has abused his power, but that the decision is not in all the circumstances the appropriate one. The second, as again the noble Lord, Lord Silkin, made clear, is formed by complaints against acts of maladministration, which are complaints aimed at official misconduct, where it is a question not of appealing from but of making an accusation against officials. That is the real difference between the two parts of the case.
The remedy suggested by the Whyatt Report for the first type of complaint 217 is, broadly, an extension of the tribunal procedure over a much wider field than at present. The Report suggests that the powers of the Council on Tribunals should be extended so that it can survey these areas where there are no tribunals at the moment, and make suggestions where they should exist, where decisions are made which are not at present subject to appeal. The Council would also have authority to impose new procedures of inquiry similar to the statutory procedures which come under its supervision. It is further recommended that a General Appeal Tribunal should be established to deal with appeals from miscellaneous discretionary decisions which cannot suitably be allocated to special tribunals. I think my noble and learned friend Lord Denning was the only one of your Lordships who had the courage to hint, without nailing his colours to it, that perhaps we might get to something like the arrangement which is part of the structure of the courts. That is a different approach, but one which most of us have considered carefully because we read the book on it by our friend Professor Hamson. That is the position with regard to the first type of complaint.
For the second type of complaint the Whyatt Report suggests the appointment of a Parliamentary Commissioner whose status would be similar to that of the Comptroller and Auditor General. It is said that in the first instance he will act only on complaints received from Members of either House, although it is suggested that later his jurisdiction might be extended to entertaining complaints direct from the public. The Report proposes that before investigating a complaint against a Department the Commissioner would notify the Minister concerned who would have power to veto the proposed investigation. The Commissioner would have access to departmental correspondence and reports, but not to internal minutes. Any criticism in his report would be confined to the Department concerned and would not mention civil servants by name.
This is the guiding principle of the Report: that the individual is entitled to have an impartial adjudication of his dispute with authority, unless there are overriding considerations which make it 218 necessary in the public interest that the Minister should retain the responsibility for making the final decision. That is, of course, very attractive to enunciate, but I think all your Lordships who have had to deal with administration will consider that it requires careful thought, because it really is saying that the whole balance will be that if you find a decision left to somebody, and no appeal procedures from that somebody's decision, you must invent them. All I am saying (I hope your Lordships will not misunderstand me and think I am prejudging it) is that I believe it needs a great deal of thought, because the country has to go on and administration has to go on and you have to balance matters.
The noble Lord, Lord Silkin, raised an interesting development of that point. He said that it was difficult to find a principle between the cases where there were tribunals and the cases where there were not. I would suggest that, broadly, the tribunals have been thought appropriate in cases where the issues are defined and can be decided in accordance with settled rules; they have been thought inappropriate where the decisions are largely discretionary and subject to considerations of policy. I should remind your Lordships that even in the judicial sphere the exercise of discretion by a judge of first instance is very seldom interfered with by an appellate court. It is for your Lordships' consideration whether the application in the administrative sphere of the same principle should not be considered. If I may again wander for a moment, I remember my immense relief when the Court of Appeal took that view and said they could not interfere with the discretion when I had persuaded my noble and learned friend Lord Denning to exercise his discretion in favour of my client. But it is an important point that, if you say this is a matter of discretion, then the approach of the law has certainly been that we must be chary of interfering with it.
The other point is one which I think will appeal to your Lordships as a question which must be faced. There must necessarily be large areas where efficient administration means entrusting the administrator of appropriate rank 219 with the responsibility of making decisions, subject to the general instructions of his superior and the safeguard of Ministerial responsibility to Parliament. A wide extension of the tribunal system must be considered from the point of view of the possibility of its being slower, more expensive, and less responsible administration. I think that is a psychological problem which we have to consider. We want good administrators, just as we want good officers in the Services. If there is not to be responsibility, if there is always to be an appeal, shall we get them? That is what I am asking your Lordships to consider, because I think it is an important point which we have to bear in mind.
On the other point, your Lordships will obviously consider whether the creation of tribunals should be a matter for Parliament or whether it should be a matter for a body outside Parliament as is suggested in the Report. I think noble Lords will agree with me that the whole tendency in our Parliamentary lifetime has been for Parliament to insert provision for a tribunal in an Act when it thought right. I am trying to raise the points which your Lordships should consider, rather than prejudge them in any way. The proposals for a Parliamentary Commissioner have received more notice than those relating to appeals in discretionary matters. Here again, I feel there are very serious aspects to be considered which I hope noble Lords will think worthy of consideration. My noble and learned friend Lord Denning expressed the fear which has been expressed in several quarters, that the proposals would affect the responsibility of Ministers to Parliament. The fear has also been expressed that they affect the vitally important function of a Member of Parliament in himself probing, by letter, Parliamentary Question, and Adjournment Debates the grievances of his constituents.
On the first of these points, the question of Ministerial responsibility, there is bound to be a borderline area where the carrying out of a Minister's policy may in itself cause hardship. As all your Lordships know, when one is drawing a Statute one has to draw a line as to its application, and as one comes up against that line one comes up against the hard case. That is the reason for our proverb 220 that, "Hard cases make bad law." Your Lordships will see where that leads. Criticising the Minister's policy is a matter for Parliament but, as the noble Lord, Lord Silkin, indicated, it would be invidious for a Minister to appear to ward off the inquiry by the Parliamentary Commissioner by using his veto. It would look as if he had something to hide. Moreover, as the noble and learned Lord, Lord Denning, pointed out, it is the corollary of the responsibility of a Minister to Parliament for the actions of his staff that the Minister himself must discipline his staff when they err. Equally, many are troubled by the conception that a Member of Parliament might, under one pressure or another, have to pass to the Commissioner action which he has hitherto thought his own duty, and which has been one of the most important matters in preserving his personal relationship with his constituents, irrespective of Party.
If I have mentioned it to your Lordships before, I apologise, but during the eighteen months of my Membership of another place I saw nearly 200 constituents a month—over 3,000 in all—personally and face to face, in order to get the real strength of their problems. The importance of that is that it gets rid of the constituents' idea of this terrible, "we" and "they"—the idea that they are different from ourselves—if they can come and talk to us. I pushed all their troubles, by letter, by Question or otherwise, as a Member of Parliament. That is tremendously important, and I think it is a matter for consideration. I do not put it any higher than that—that it should be considered.
I have done my best to give your Lordships in brief outline an indication of some of the thoughts which have occurred to me on a first reading of the Whyatt Report. I have done so because I believe that the relationship of the individual with the modern, complicated, scientific State is one of the great problems of our time, and that we should never lose an opportunity for considering it. But I would ask your Lordships to say that, as far as the Government are concerned (the Report has been published for only quite a short time) it is obvious that, in view of its far-reaching proposals, the Government must have further time 221 before they can reasonably be expected to be in a position to define their attitude to it. Therefore, may I again thank your Lordships, especially the noble Lords, Lord Lucas of Chilworth and Lord Silkin, for introducing what to me has been a very interesting discussion, and ask your Lordships to extend your usual clemency to me for the length of my reply.
§ 6.20 p.m.
§ LORD LUCAS OF CHILWORTH
My Lords, may I thank the noble and learned Viscount for the continued good will and courtesy which he always displays to me when I raise these rather controversial issues? I am quite prepared to accept the noble and learned Viscount's assurances that the matters I have raised will receive his very careful consideration. When he says that, I know that they will, and I have no further observation to make except this: I raised the Motion, noble Lords will remember, on December 1, just over twelve months ago. I played the coward and ran away to the sunshine of the Caribbean and South America, leaving your Lordships to withstand the rigours of the English winter, knowing full well I should arrive back in this country about 222 the same time as consideration would be given to the point I had raised. I intend to do the same again. I shall be with your Lordships again about Easter time, and I know the noble and learned Viscount will not object if I raise the whole matter again. Perhaps he will then be in a position to give me all the answers that he could not give me this afternoon. With my renewed thanks to him and to your Lordships for a most interesting debate, I beg your Lordships' leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.
§ LORD SILKIN
My Lords, I did not formally put the Question which is in my name on the Order Paper, but I think that the noble and learned Viscount has already replied to it and I would not expect him to give another reply. The proletarians will be here right through up to Easter, and it may be that the noble and learned Viscount will be hearing from me again, as well, round about that time.
§ House adjourned at twentyone minutes past six o'clock.